Mother And Father Witness Child’s Birth Injury At Sacramento Hospital, Part 2 of 4

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury/personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

Direct Victim Analysis Is Inapplicable to Plaintiff Timothy Lee.

Plaintiffs argue that Timothy Lee is a “direct victim,” thereby entitling him to damages based upon a cause of action for NIED. Plaintiffs inappropriately rely on Burgess v. Superior Court, (1992) 2 Cal.4th 1064. In Burgess, the Supreme Court held that a mother could claim emotional distress damages as a direct victim of medical negligence which injured her baby during the birthing process. The Court’s rationale was based on the physician-patient relationship that gave rise to a duty owed to the mother which encompassed medical care rendered to both her and her fetus. As the Court stated:

It is in light of both these physical and emotional realities (the court was referring to the altruistic physical and emotional connection between a woman and her fetus. (Burgess at 1076)) that the obstetrician and the pregnant woman enter into a physician-patient relationship. It cannot be gainsaid that both parties understand that the physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus. Any negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother, therefore, breaches a duty owed directly to the mother. Id. at 1076.

Burgess cannot not be misinterpreted to create an imaginary duty owed to the father. Fathers are precluded by nature from having the same physical and emotional bond a mother has to her fetus. In this case, neither Dr. White nor Dr. Green owed a duty to Timothy Lee because there was no physician-patient relationship between them. Therefore, Timothy Lee is precluded from relying on the direct victim theory of recovery for NIED.

Plaintiffs’ opposition relies heavily on Andalon v. Superior Court, (1984) 162 Cal.App.3d 600 and Newton v. Kaiser Hospital, (1986) 184 Cal.App.3d 386. [See Plaintiffs’ Opposition] However, these two appellate court decisions have been criticized by the Supreme Court. [See, Thing v. LaChusa, (1989) 48 Cal.3d 644, 659-660 (criticizing the court’s abandonment of distinguishing between direct victim and bystander cases. Also critical of foreseeability analysis); See also, Marlene F. v. Affiliated Psychiatric Medical Clinic Inc., (1989) 48 Cal.3d 583, fn 7( In light of the facts of this case, we need not consider the validity of the theory advanced by one Court of Appeal, which premises a duty to parents solely on the basis of a contract they enter into for the care of their child and then permits recovery for emotional distress if that care is not properly rendered. (Cf. Andalon v. Superior Court, (1984) 162 Cal.App.3d 600, 611; and Newton v. Kaiser Hospital, (1986) 184 Cal.App.3d 386, 392. )]. Therefore, Thing is controlling, with respect to Timothy Lee’ claim for NIED. (See Part 3 of 4.)